Carey video: Filming legal, but insinuation could spark defamation, lawyer warns

A prominent Melbourne lawyer says it is legal to film in a public place and legal to publish a video, but any insinuation that former footballer Wayne Carey and a Melbourne marketing executive had acted inappropriately in a wine bar bathroom could spark a defamation claim.

A group of women filmed Melbourne woman Kate Aston leaving a unisex bathroom area at Armadale venue Toorak Cellars last Friday night and walking up steps. She was followed about 20 seconds later by Carey.

Melbourne woman Kate Aston.Credit: Oreana

In the widely shared video, Carey is seen stopping to make a phone call while the women filming can be heard making comments such as “she looks embarrassed” and “what’s he doing in there?”.

Carey and Aston have both denied the insinuation that anything occurred between them in a bathroom.

Thomson Geer partner Justin Quill said filming in public was legal in Victoria and did not require a subject’s consent.

“There’s no issue as far as I can see with the filming or the publication of it,” Quill told radio station 3AW on Friday morning.

However, he said the pair could have grounds to pursue defamation cases.

“If it can be proven it was said about them – and that it was not true – then at least you’ve got an argument now that it might be defamation,” he said.

“There’s a whole lot of other boxes you’d have to tick before you actually win a case, but it’s arguable.”

Aston told the Herald Sun on Thursday she had chosen to identify herself to hold the women who filmed the video accountable and that it would be “naive” of her not to seek legal advice.

Kate Aston was filmed at Armadale venue Toorak Cellars.Credit:

“I’d chosen to stay silent, to protect my family, my professional reputation, my own mental health and ultimately, my future,” Aston told the Herald Sun.

“Whilst it’s only been a matter of days since this incident unfolded, there has been ­immeasurable damage to my reputation, and my ability to lead a normal life has been ­adversely affected.

“The actions of these women have meant my name is now in the public realm, and I am now the subject of immense ridicule. It has already affected my ability to earn an income with other far-reaching negative consequences to come.”

Earlier this week, Carey criticised the women who filmed and posted the video online for creating a “made-up story”.

Speaking on football personality Sam Newman’s You Cannot Be Serious podcast, Carey accused the women filming the video of slut-shaming.

“This is women picking on women,” he said. “That’s all they were doing, they were slut-shaming another woman. If two men had done that, they would be raked over hot coals.”

Carey also said on the podcast that he had consulted police, lawyers, and the AFL Players’ Association, and that his partner Jessica Paulke had teamed up with Aston to hold the two women who recorded the video accountable.

The upscale Beatty Street wine bar includes a boutique bottle shop and an outdoor courtyard.

When The Age visited Toorak Cellars on Friday afternoon, patrons were seen discussing the video with staff. One woman was heard asking, “who on earth would film that?”

The incident involving Aston and Carey was filmed near a short set of steps leading to a unisex bathroom area. The space contains four cubicles, which are not marked by gender, and is accessed through a single shared entrance.

The shared unisex toilets located in the Toorak Cellars courtyard.

Aston told the Herald Sun she believed the publication of the video was cyber-bullying.

“There needs to be some sort of accountability for [the women’s] actions,” she said.

“In addition, it is my hope by shining light on this incident and taking legal action, a new precedent will be set, one that discourages this type of behaviour from continuing into the future.”

However, Quill said he would advise Carey against suing the two women given his 2002 affair with Kelli Stevens, the then-wife of North Melbourne vice-captain Anthony Stevens.

The Toorak Cellars courtyard.

“I would say, if Wayne Carey came to me for advice about this case, I would be definitely telling him not to sue, not to take any action. It’s generally not a good idea to sue in defamation. You know, nobody wins, other than … the lawyers,” he said.

“Given those issues … because what’s alleged here is not dissimilar, I think it would be a silly move legally for him.”

Aston said the online media storm had prompted her to deactivate her social media accounts, including her LinkedIn profile.

“We often speak, and rightly so, about the barriers men ­create for women: exclusion, dismissal, denial of opportunity,” she said.

“But what we rarely confront is the way some women weaponise shame, gossip and social sabotage against other women. This is that moment.”

Aston declined to comment when contacted. Carey has been contacted for comment.

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